NORTHFIELD BANK
EMPLOYMENT AGREEMENT
This employment agreement (this "Agreement") is made effective as of the
3rd day of January, 2008 (the "Effective Date"), by and between Northfield Bank
(the "Bank"), a federally-chartered savings bank with its principal offices at
0000 Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx 00000-0000, and Xxxx X.
Xxxxxxxxx ("Executive").
WITNESSETH:
WHEREAS, the Bank is a wholly-owned subsidiary of Northfield Bancorp, Inc.,
a federally-chartered stock holding company (the "Company"). The Company is a
subsidiary of Northfield Bancorp, MHC, a federally-chartered mutual holding
company (the "Mutual Holding Company"); and
WHEREAS, Executive and Northfield Savings Bank, a New York-chartered
savings bank (which was the predecessor of the Bank) entered into an employment
agreement (the "Original Agreement") dated July 1, 2006, pursuant to which
Executive served as Chairman of the Board and Chief Executive Officer of
Northfield Savings Bank; and
WHEREAS, Section 409A of the Internal Revenue Code (the "Code"), effective
January 1, 2005, requires deferred compensation arrangements, including those
set forth in employment agreements, to comply with its provisions and
restrictions and limitations on payments of deferred compensation; and
WHEREAS, the Final Treasury Regulations issued under Code Section 409A in
April of 2007 necessitate changes to the Original Agreement, and Executive has
agreed to such changes and certain other amendments to the Original Agreement;
and
WHEREAS, the Bank and Executive believe it is in the best interests of the
Bank to enter into this Agreement, and Executive is willing to continue to serve
in the employ of the Bank on a full-time basis as its Chairman, President and
Chief Executive Officer on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein contained, and upon the other terms and conditions hereinafter provided,
the parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the term of Executive's employment hereunder, Executive agrees to
serve as the Chairman of the Board, President and Chief Executive Officer of the
Bank. Executive shall perform administrative and management services for the
Bank which are customarily performed by persons in a similar executive officer
capacity. Executive shall be responsible for the overall management of the
Company and the Bank and shall be responsible for establishing the business
objectives, policies and strategic plan of the Company and the Bank. Executive
shall also be responsible for providing leadership and direction to all
departments or divisions of the Company and the Bank, and shall be the primary
contact between the Board of Directors and the staff of the Company and the
Bank. During said period, Executive also agrees to serve as a director of the
Company and the Bank and, if elected, as an officer and director of any
subsidiary of the Bank or the Company. Executive's principal place of employment
shall be at the Bank's principal executive offices. The Bank shall provide
Executive, at his principal place of employment, with support services and
facilities suitable to his position with the Bank and necessary or appropriate
in connection with the performance of his duties under this Agreement.
2. TERM OF EMPLOYMENT.
(a) The term of Executive's employment under this Agreement shall commence
as of the Effective Date and shall continue thereafter for a period of three (3)
years. Commencing on the first anniversary date of this Agreement (the
"Anniversary Date") and continuing on each Anniversary Date thereafter, the term
of this Agreement shall renew for an additional year such that the remaining
term of this Agreement is always three (3) years, unless written notice of
non-renewal (a "Non-Renewal Notice") is provided to Executive at least thirty
(30) days and not more than sixty (60) days prior to such Anniversary Date, in
which case the term of this Agreement shall become fixed and shall end three (3)
years following such Anniversary Date. The disinterested members of the Board of
Directors (the "Board") of the Bank will conduct a performance evaluation and
review of Executive annually for purposes of determining whether to give notice
not to extend the term of this Agreement, and the results thereof shall be
included in the minutes of the Board's meeting.
(b) Notwithstanding anything contained in this Agreement to the contrary,
either Executive or the Bank may terminate Executive's employment with the Bank
at any time during the term of this Agreement, subject to the terms and
conditions of this Agreement.
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute
consideration paid by the Bank in exchange for duties described in Section 1 of
this Agreement. The Bank shall pay Executive, as compensation, a salary of not
less than $676,000 per year ("Base Salary"). Base Salary shall include any
amounts of compensation deferred by Executive under any employee benefit plan or
deferred compensation arrangement maintained by the Bank. Such Base Salary shall
be payable bi-weekly or, if different, in accordance with the Bank's customary
payroll practices. During the term of this Agreement, Executive's Base Salary
shall be reviewed at least annually by the 31st day of each January. Such review
shall be conducted by the Board or by a committee designated by the Board. The
committee or the Board may increase (but not decrease) Executive's Base Salary
at any time. Any increase in Base Salary shall become the "Base Salary" for
purposes of this Agreement. The Board may engage the services of an independent
consultant to determine the appropriate Base Salary. In addition to the Base
Salary provided in this Section 3(a), the Bank shall also provide Executive with
all such other benefits as are provided uniformly to full-time employees of the
Bank, on the same basis (including cost) that such benefits are provided to
other senior officers of the Bank.
(b) In addition to the Base Salary provided for in Section 3(a), the Bank
will provide Executive with the opportunity to participate in employee benefit
plans, arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving a benefit from immediately
prior to the beginning of the term of this Agreement, and any other employee
benefit plans, arrangements and perquisites suitable for the Bank's senior
executives adopted by the Bank subsequent to the Effective Date, and the Bank
will not, without Executive's prior written consent, make any changes in such
plans, arrangements or perquisites which would adversely affect Executive's
rights or benefits thereunder, without separately providing for an arrangement
that ensures Executive receives, or will receive, the economic value that
Executive would otherwise lose as a result of such adverse effect, unless such
changes apply equally to all other employees or senior officers of the Bank.
Without limiting the generality of the foregoing provisions of this Section
3(b), Executive shall be entitled to participate in or receive benefits under
any employee benefit plans, whether tax-qualified or otherwise, including, but
not limited to, retirement plans, supplemental retirement plans, deferred
compensation plans, pension plans, profit-sharing plans, employee stock
ownership plans, stock award or stock option plans, health-and-accident plans,
medical coverage or any other employee benefit plan or arrangement made
available by the Bank in the future to its senior executives and key management
employees, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements (including designation by
the Board of eligibility to participate, if applicable). Executive shall also be
entitled to incentive compensation and bonuses as provided in any plan or
arrangement of the Bank in which Executive is eligible to participate (and he
shall be entitled to a pro rata distribution under any incentive compensation or
bonus plan as to any year in which a termination of employment occurs, other
than Termination for Just Cause). Nothing paid to Executive under any such plans
or arrangements will be deemed to be in lieu of other compensation to which
Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by Section 3(a) and other
compensation and benefits provided for by Section 3(b), the Bank shall pay or
reimburse Executive for all reasonable expenses incurred by Executive in
performing his obligations under this Agreement in accordance with the Bank's
reimbursement policies.
(d) The Bank shall continue to sponsor and pay for the non-qualified
supplemental retirement income plan(s) in effect on the date hereof for the
benefit of Executive and shall provide Executive with a life insurance policy
owned by Executive or a family trust for which the Bank pays all premiums,
provided that Executive shall recognize income on such coverage at the rates
determined pursuant to applicable federal and state tax laws. The Bank shall
also pay or reimburse Executive for the annual dues associated with Executive's
membership in a country club of Executive's choice located in the market area
served by the Bank. In addition, during the term of this Agreement the Bank
shall reimburse Executive for the expense of leasing an automobile for use by
Executive under a 36-39 month lease provided the monthly lease payment does not
exceed $1,500, and provided further that the monthly lease allowance shall be
reviewed by the Board at the end of each three-year lease term. The Bank shall
also reimburse Executive for the reasonable expenses associated with the use of
such automobile, including gasoline, maintenance expenses and insurance.
(e) Executive shall be entitled to paid time off in accordance with the
standard policies of the Bank for senior executive officers, but in no event
less than thirty (30) days paid time off during each year of employment.
Executive shall receive his Base Salary and other benefits during periods of
paid time off. Executive shall also be entitled to paid legal holidays in
accordance with the policies of the Bank. Executive shall also be entitled to
sick leave in accordance with the policies of the Bank, but in no event less
than the number of days of sick leave per year to which Executive was entitled
at the Effective Date of this Agreement.
4. OUTSIDE ACTIVITIES.
During the term of his employment hereunder, except for periods of absence
occasioned by illness, reasonable vacation periods and reasonable leaves of
absence approved by the Board, Executive shall devote substantially all his
business time, attention, skill, and efforts to the faithful performance of his
duties hereunder. Executive also may serve as a member of the board of directors
of business, trade association, community and charitable organizations subject
to the annual approval of the Board; provided that in each case such service
shall not materially interfere with the performance of his duties under this
Agreement or present any conflict of interest. Executive shall provide to the
Board annually a list of all organizations for which Executive serves as a
director or in a similar capacity for purposes of obtaining the Board's approval
of Executive's service on the boards of such organizations. Such service to and
participation in outside organizations shall be presumed for these purposes to
be for the benefit of the Bank, and the Bank shall reimburse Executive his
reasonable expenses associated therewith, except for such items that are tax
deductible by the Executive as charitable contributions.
5. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during Executive's term of employment under this Agreement, the provisions of
this Section 5 shall apply. As used in this Agreement, an "Event of Termination"
shall mean and include any of the following:
(i) the termination by the Bank of Executive's full-time employment
hereunder for any reason other than termination governed by
Section 6 (Termination for Just Cause) or termination governed by
Section 7 (Termination for Disability or Death); or
(ii) Executive's resignation from the Bank's employ for any of the
following reasons:
(A) the failure to elect or reelect or to appoint or reappoint
Executive to the positions set forth under Section 1
(without Executive's consent), or the failure to nominate or
renominate Executive as a Director of the Bank or the
Company;
(B) a material change in Executive's functions, duties, or
responsibilities with the Bank, which change would cause
Executive's position to become one of lesser responsibility,
importance, or scope from the position and attributes
thereof described in Section 1, above;
(C) a relocation of Executive's principal place of employment by
more than 30 miles from the main office of the Bank on
Staten Island and the Rahway branch of the Bank in Rahway,
New Jersey;
(D) a material reduction in the benefits and perquisites to
Executive from those being provided as of the Effective Date
of this Agreement, other than a reduction that is part of a
Bank-wide reduction in pay or benefits;
(E) a liquidation or dissolution of the Company or the Bank,
other than a liquidation or dissolution that is caused by a
reorganization or a mutual-to-stock conversion of the Mutual
Holding Company which does not affect the status of
Executive; or
(F) a material breach of this Agreement by the Bank.
Upon the occurrence of any event described in clauses (A), (B),
(C), (D), (E) or (F), above, Executive shall have the right to
elect to terminate his employment under this Agreement by
resignation upon not less than sixty (60) days prior written
Notice of Termination, as defined in Section 9(a), given within
six (6) full calendar months after the event giving rise to said
right to elect. Notwithstanding the preceding sentence, in the
event of a continuing breach of this Agreement by the Bank,
Executive, after giving due notice within the prescribed time
frame of an initial event specified above, shall not waive any of
his rights under this Agreement and this Section solely by virtue
of the fact that Executive has submitted his resignation,
provided Executive has remained in the employment of the Bank and
is engaged in good faith discussions to resolve any occurrence of
an event described in clauses (A), (B), (C), (D) or (F) above.
(iii) Executive's voluntary resignation from the Bank's employ on the
effective date of, or at any time following, a Change in Control
of the Bank or the Company during the term of this Agreement. For
these purposes, a Change in Control of the Bank or the Company
shall mean a change in control of a nature that: (i) would be
required to be reported in response to Item 5.01 of the current
report on Form 8-K, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 0000 (xxx
"Xxxxxxxx Xxx"); or (ii) without limitation such a Change in
Control shall be deemed to have occurred at such time as (a) any
"person" (as the term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than the Mutual Holding Company, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing 25% or more of the combined voting power of
Company's outstanding securities except for any securities
purchased by the Bank's employee stock ownership plan or trust;
or (b) individuals who constitute the Board of Directors of the
Company on the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof, provided that
any person becoming a director subsequent to the date hereof
whose election was approved by a vote of at least a majority of
the directors shall be, for purposes of this clause (b),
considered as though he were a member of the Incumbent Board; or
(c) a plan of reorganization, merger, consolidation, sale of all
or substantially all the assets of the Bank or the Company or
similar transaction in which the Bank or Company is not the
surviving institution occurs; or (d) a proxy statement is
distributed soliciting proxies from stockholders of the Company,
by someone other than the current management of the Company,
seeking stockholder approval of a plan of reorganization, merger
or consolidation of the Company or similar transaction with one
or more corporations or financial institutions, and as a result
of such proxy solicitation, a plan of reorganization, merger,
consolidation or similar transaction involving the Company is
approved by the requisite vote of the Company's stockholders; or
(e) a tender offer is made for 25% or more of the voting
securities of the Company and the shareholders owning
beneficially or of record 25% or more of the outstanding
securities of the Company have tendered or offered to sell their
shares pursuant to such tender offer and such tendered shares
have been accepted by the tender offeror. Notwithstanding
anything to the contrary herein, a Change in Control shall not be
deemed to have occurred in the event that (i) the Company sells
less than 50% of its outstanding common stock in one or more
stock offerings, or (ii) the Company or the Mutual Holding
Company converts to stock form by reorganizing into the stock
holding company structure.
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 9(b), the Bank shall be obligated to pay
Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, an amount equal to the sum of: (i) his earned but unpaid
salary as of the date of his termination of employment with the Bank; (ii) the
benefits, if any, to which he is entitled as a former employee under the
employee benefit plans and programs and compensation plans and programs
maintained for the benefit of the Bank's or Company's officers and employees;
(iii) the remaining payments that Executive would have earned, in accordance
with Sections 3(a) and 3(b), if he had continued his employment with the Bank
for a thirty-six (36) month period following his termination of employment, and
had earned a bonus and/or incentive award in each year equal in amount to the
average bonus and/or incentive award earned by him over the three calendar years
preceding the year in which the termination occurs in the case of a termination
pursuant to Section 5(a)(i) or 5(a)(ii), or the highest annual bonus and/or
incentive award earned by him in any of the three calendar years preceding the
year in which the termination occurs in the case of a termination pursuant to
Section 5(a)(iii); and (iv) the annual contributions or payments that would have
been made on Executive's behalf to any employee benefit plans of the Bank or the
Company as if Executive had continued his employment with the Bank for a
thirty-six (36) month period following his termination of employment, based on
contributions or payments made (on an annualized basis) at the Date of
Termination. Any payments hereunder shall be made in a lump sum within thirty
(30) days after the Date of Termination, or in the event Executive is a
Specified Employee (within the meaning of Treasury Regulations ss.1.409A-1(i)),
and to the extent necessary to avoid penalties under Code Section 409A, no
payment shall be made to Executive prior to the first day of the seventh month
following Executive's Date of Termination. Such payments shall not be reduced in
the event Executive obtains other employment following termination of
employment.
(c) Upon the occurrence of an Event of Termination, the Bank will cause to
be continued life insurance and non-taxable, medical and dental and disability
coverage substantially identical to the coverage maintained by the Bank for
Executive and his family prior to Executive's termination. Such coverage shall
continue at the Bank's expense for a period of thirty-six (36) months from the
Date of Termination.
(d) Notwithstanding anything herein to the contrary, in no event shall the
aggregate payments or benefits to be made or afforded to Executive under this
Section constitute an "excess parachute payment" under Code Section 280G , or
any successor thereto, and in order to avoid such a result, Executive's benefits
hereunder shall be reduced, if necessary, to an amount, the value of which is
one dollar ($1.00) less than an amount equal to three (3) times Executive's
"base amount," as determined in accordance with Code Section 280G. The
allocation of the reduction required hereby shall be determined by Executive,
provided, however, that if it is determined that such election by Executive
shall be in violation of Code Section 409A, the allocation of the required
reduction shall be pro-rata.
(e) For purposes of Section 5, an "Event of Termination" as used herein
shall mean "Separation from Service" as defined in Code Section 409A and the
Treasury Regulations promulgated thereunder, provided, however, that the Bank
and Executive reasonably anticipate that the level of bona fide services
Executive would perform after termination would permanently decrease to a level
that is less than 50% of the average level of bona fide services performed
(whether as an employee or an independent contractor) over the immediately
preceding 36-month period.
6. TERMINATION FOR JUST CAUSE.
(a) The term "Termination for Just Cause" shall mean termination because of
Executive's personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, material breach of the Bank's Code of
Ethics, material violation of the Xxxxxxxx-Xxxxx requirements for officers of
public companies that in the reasonable opinion of the Chief Executive Officer
of the Bank or the Board will likely cause substantial financial harm or
substantial injury to the reputation of the Bank, willfully engaging in actions
that in the reasonable opinion of the Board will likely cause substantial
financial harm or substantial injury to the business reputation of the Bank,
intentional failure to perform stated duties, willful violation of any law, rule
or regulation (other than routine traffic violations or similar offenses) or
final cease-and-desist order, or material breach of any provision of the
contract.
(b) Notwithstanding Section 6(a), the Bank may not terminate Executive for
Just Cause unless and until there shall have been delivered to him a Notice of
Termination which shall include a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of the
Board at a meeting of the Board called and held for that purpose, finding that
in the good faith opinion of the Board, Executive was guilty of conduct
justifying Termination for Just Cause and specifying the particulars thereof in
detail. Executive shall not have the right to receive compensation or other
benefits for any period after Termination for Just Cause. During the period
beginning on the date of the Notice of Termination for Just Cause pursuant to
this Section 6(b) through the Date of Termination, any unvested stock options
and related limited rights granted to Executive under any stock option plan
shall not be exercisable nor shall any unvested awards granted to Executive
under any stock benefit plan of the Bank, the Company or any subsidiary or
affiliate thereof, vest. At the Date of Termination, any such unvested stock
options and related limited rights and any such unvested awards shall become
null and void and shall not be exercisable by or delivered to Executive at any
time subsequent to such Termination for Just Cause. In the Event of Executive's
Termination for Just Cause, Executive shall resign as a director of the Company
and the Bank, and as a director and/or officer of any subsidiary or affiliate of
the Company and/or the Bank.
7. TERMINATION FOR DISABILITY OR DEATH.
(a) The Bank or Executive may terminate Executive's employment after having
established Executive's Disability. For purposes of this Agreement, "Disability"
shall be deemed to have occurred if: (i) Executive is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death, or last for a
continuous period of not less than 12 months; (ii) by reason of any medically
determinable physical or mental impairment that can be expected to result in
death, or last for a continuous period of not less than 12 months, Executive is
receiving income replacement benefits for a period of not less than three months
under an accident and health plan covering employees of the Bank; or (iii)
Executive is determined to be totally disabled by the Social Security
Administration.
(b) In the event of such Disability, Executive's obligation to perform
services under this Agreement will terminate. In the event of such termination,
Executive shall receive the benefits provided under any disability program
sponsored by the Company or the Bank. To the extent such benefits are less than
Executive's Base Salary, as defined in Section 3(a) on the effective Date of
Termination and less than sixty-six and two-thirds percent (66 2/3%) of
Executive's Base Salary after the first year following termination, Executive
shall receive as a supplement to such disability benefit the difference between
the benefits provided under any disability program sponsored by the Company or
the Bank and (x) his Base Salary, as defined in Section 3(a), at the rate in
effect on the Date of Termination for a period of one (1) year following the
Date of Termination by reason of Disability, and (y) sixty-six and two-thirds
percent (66 2/3%) of Executive's Base Salary after the first year following
termination through the earliest to occur of the date of Executive's death,
recovery from such Disability, or the date Executive attains age 65. In
calculating the payments due Executive under the Section 6(b), if the disability
insurance payments are excludable from Executive's income for federal income tax
purposes, such amounts shall be tax adjusted, assuming a combined federal, state
and city tax rate of 38%, for purposes of determining the reduction in the
payments due under this Agreement to reflect the tax-free nature of the
disability insurance payment - by way of illustration, a $100 tax-free
disability insurance payment shall reduce the payment due under this Agreement
by $161.30. In addition, in the event of termination due to Executive's
Disability, Executive and his dependents shall, to the greatest extent possible,
continue to be covered, at no cost to them, under all benefit plans (including,
without limitation, retirement plans and non-taxable medical and dental plans,
and life insurance plans) of the Company or the Bank in which Executive
participated prior to the occurrence of Executive's Disability and on the same
terms as if Executive were actively employed by the Company or the Bank, and
said coverage shall continue through the earliest to occur of (i) Executive's
recovery from such Disability, or (ii) Executive's attaining age 65.
(c) In the event of Executive's death during the term of this Agreement,
his estate, legal representatives or named beneficiary or beneficiaries (as
directed by Executive in writing) shall be paid Executive's Base Salary, as
defined in Section 3(a), at the rate in effect at the time of Executive's death
for a period of one (1) year from the date of Executive's death, and the Bank
will continue to provide Executive's family the same non-taxable medical,
dental, and other health benefits that were provided by the Bank to Executive's
family immediately prior to Executive's death, on the same terms, including
cost, as if Executive were actively employed by the Bank, except to the extent
the terms (including cost) of such benefits are changed in their application to
all continuing employees of the Bank, such coverage to continue for a period of
one (1) year after the date of Executive's death.
8. TERMINATION UPON RETIREMENT.
Termination of Executive's employment based on "Retirement" shall mean
termination of Executive's employment on or after age 65 and in accordance with
a retirement policy established by the Board with Executive's consent with
respect to him. Upon termination of Executive based on Retirement, no amounts or
benefits shall be due Executive under this Agreement, and Executive shall be
entitled to all benefits under any retirement plan of the Bank and other plans
to which Executive is a party.
9. NOTICE.
(a) Any notice required under this Agreement shall be in writing and
hand-delivered to the other party. Any termination by the Bank or by Executive
shall be communicated by Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
(b) "Date of Termination" shall mean (A) if Executive's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his duties
on a full-time basis during such thirty (30) day period), and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination.
(c) If the party receiving a Notice of Termination desires to dispute or
contest the basis or reasons for termination, the party receiving the Notice of
Termination must notify the other party within thirty (30) days after receiving
the Notice of Termination that such a dispute exists, and shall pursue the
resolution of such dispute in good faith and with reasonable diligence pursuant
to Section 20 of this Agreement. During the pendency of any such dispute,
neither the Company nor the Bank shall be obligated to pay Executive
compensation or other payments beyond the Date of Termination.
10. POST-TERMINATION OBLIGATIONS.
Executive shall, upon reasonable notice, furnish such information and
assistance honestly and in good faith to the Bank or the Company as may
reasonably be required by the Bank or the Company in connection with any
litigation in which it or any of its subsidiaries or affiliates is, or may
become, a party. All payments and benefits to Executive under this Agreement
shall be subject to Executive's compliance with this Section 10 for one (1) full
year after the earlier of the expiration of this Agreement or termination of
Executive's employment with the Bank.
11. NON-COMPETITION AND NON-DISCLOSURE.
(a) As a material inducement for the Bank to enter into this Agreement,
upon any termination of Executive's employment hereunder pursuant to the terms
of this Agreement, other than a termination of Executive's employment under
Sections 5(a)(iii) or 6 of this Agreement, Executive agrees not to compete with
the Bank for a period of two (2) years following such termination in any city,
town or county in which Executive's normal business office is located and the
Bank has an office or has filed an application for regulatory approval to
establish an office, determined as of the effective date of such termination,
except as agreed to pursuant to a resolution duly adopted by the Board.
Executive agrees that during such period and within said cities, towns and
counties, Executive shall not work for or advise, consult or otherwise serve
with, directly or indirectly, any entity whose business materially competes with
the depository, lending or other business activities of the Bank. Executive
further agrees that for a period of two (2) years following any termination of
employment, he shall not directly or indirectly, solicit, hire, or entice any of
the following to cease, terminate, or reduce any relationship with the Bank or
the Company or to divert any business from the Bank or the Company: (i) any
person who was an employee of the Bank or the Company during the term of this
Agreement; or (ii) any customer or client of the Bank or the Company. Further,
Executive will not directly or indirectly disclose the names, addresses,
telephone numbers, compensation, or other arrangements between the Bank or the
Company and any individual or entity described in Sections (i) and (ii) of this
Section 11(a). The parties hereto, recognizing that irreparable injury will
result to the Bank, its business and property in the event of Executive's breach
of this Subsection agree that in the event of any such breach by Executive, the
Bank will be entitled, in addition to any other remedies and damages available,
to an injunction to restrain the violation hereof by Executive, Executive's
partners, agents, servants, employees and all persons acting for or under the
direction of Executive. Nothing herein will be construed as prohibiting the Bank
from pursuing any other remedies available to the Bank for such breach or
threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities, plans for business activities, and all other proprietary
information of the Bank or the Company as it may exist from time to time, are
valuable, special and unique assets of the business of the Bank or the Company.
Executive will not, during or after the term of his employment, disclose any
knowledge of the past, present, planned or considered business activities or any
other similar proprietary information of the Bank or the Company to any person,
firm, corporation, or other entity for any reason or purpose whatsoever unless
expressly authorized by the Board of Directors or required by law.
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Bank or the
Company. Further, Executive may disclose information regarding the business
activities of the Bank or the Company to any bank regulator having regulatory
jurisdiction over the activities of the Bank or the Company, pursuant to a
formal regulatory request. In the event of a breach, or threatened breach, by
Executive of the provisions of this Section, the Bank or the Company will be
entitled to an injunction restraining Executive from disclosing, in whole or in
part, the knowledge of the past, present, planned or considered business
activities of the Bank or the Company, or any other similar proprietary
information, or from rendering any services to any person, firm, corporation, or
other entity to whom such knowledge, in whole or in part, has been disclosed or
is threatened to be disclosed. Nothing herein will be construed as prohibiting
the Bank from pursuing any other remedies available to the Bank for such breach
or threatened breach, including the recovery of damages from Executive.
12. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Company, however, unconditionally
guarantees payment and provision of all amounts and benefits due hereunder to
Executive and, if such amounts and benefits due from the Bank are not timely
paid or provided by the Bank, such amounts and benefits shall be paid or
provided by the Company.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and Executive, including the Original Agreement, except
that this Agreement shall not affect or operate to reduce any benefit,
compensation, tax indemnification or other provision inuring to the benefit of
Executive under any agreement between Executive, the Bank or the Company. No
provision of this Agreement shall be interpreted to mean that Executive is
subject to receiving fewer benefits than those available to him without
reference to this Agreement.
14. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Bank and their respective successors and assigns.
15. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
16. REQUIRED PROVISIONS.
(a) The Bank's Board may terminate Executive's employment at any time and
for any reason, but any termination by the Bank's Board, other than Termination
for Just Cause, shall not prejudice Executive's right to compensation or other
benefits under this Agreement.
(b) If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) (12 U.S.C. 1818(e)(3)) or 8(g) (12 U.S.C. 1818(g)) of the
Federal Deposit Insurance Act, the Bank's obligations under this Agreement shall
be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank may in its
discretion (i) pay Executive all or part of the compensation withheld while its
contract obligations were suspended and (ii) reinstate (in whole or in part) any
of the obligations which were suspended.
(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e) (12 U.S.C. 1818(e)) or 8(g) (12 U.S.C.1818(g)) of the Federal
Deposit Insurance Act, all obligations of the Bank under this Agreement shall
terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x) (12 U.S.C.
1813(x)(1)) of the Federal Deposit Insurance Act, all obligations of the Bank
under this Agreement shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations of the Bank under this Agreement may be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the institution, by the Federal Deposit Insurance
Corporation if it enters into an agreement to provide assistance to or on behalf
of the Bank. Any rights of the parties that have already vested, however, shall
not be affected by such action.
(f) Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C. Section
1828(k) and any rules and regulations promulgated thereunder, including 12
C.F.R. Part 359, and to the extent applicable, 12 C.F.R. ss.563.39.
17. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other
provisions of this Agreement or any part of such provision not held so invalid,
and each such other provision and part thereof shall to the full extent
consistent with law continue in full force and effect.
18. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
19. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New York,
without regard to its conflict of law principles, unless superceded by federal
law or otherwise specified herein.
20. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by binding arbitration, as an alternative
to civil litigation and without any trial by jury to resolve such claims,
conducted by a panel of three arbitrators sitting in a location selected by
Executive and the Bank within fifty (50) miles from the main office of the Bank,
in accordance with the rules of the American Arbitration Association's National
Rules for the Resolution of Employment Disputes ("National Rules") then in
effect. One arbitrator shall be selected by Executive, one arbitrator shall be
selected by the Bank and the third arbitrator shall be selected by the
arbitrators selected by the parties. If the arbitrators are unable to agree
within fifteen (15) days upon a third arbitrator, the arbitrator shall be
appointed for them from a panel of arbitrators selected in accordance with the
National Rules. Judgment may be entered on the arbitrator's award in any court
having jurisdiction.
21. PAYMENT OF COSTS AND LEGAL FEES AND REINSTATEMENT OF BENEFITS.
In the event any dispute or controversy arising under or in connection with
Executive's termination is resolved in favor of Executive, whether by judgment,
arbitration or settlement, Executive shall be entitled to the payment of: (1)
all legal fees incurred by Executive in resolving such dispute or controversy;
(2) any back-pay, including salary, bonuses and any other cash compensation,
fringe benefits and any compensation and benefits due Executive under this
Agreement; and (3) any other compensation otherwise due Executive as a result of
a breach of this Agreement by the Bank. Any payments pursuant to this Section 21
shall occur no later than two and one-half months after the dispute is settled
or resolved in Executive's favor.
22. INDEMNIFICATION.
The Bank and the Company shall provide Executive (including his heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense. The Bank shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under Office of Thrift Supervision ("OTS") regulations against all
expenses and liabilities reasonably incurred by him in connection with or
arising out of any action, suit or proceeding in which he may be involved by
reason of his having been a director or officer of the Bank (whether or not he
continues to be a director or officer at the time of incurring such expenses or
liabilities), such expenses and liabilities to include, but not be limited to,
advancement of legal fees and expenses, judgments, court costs and attorneys'
fees and the cost of reasonable settlements, provided, however, the Bank or
Company shall not be required to indemnify or reimburse Executive for legal
expenses or liabilities incurred in connection with an action, suit or
proceeding arising from any illegal or fraudulent act committed by Executive.
Any such indemnification shall be made consistent with OTS regulations and
Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. ss.1828(k), and
the regulations issued thereunder in 12 C.F.R. Part 359.
(b) Notwithstanding the foregoing, no indemnification shall be made unless
the Bank or Company gives the OTS at least sixty (60) days' notice of its
intention to make such indemnification. Such notice shall state the facts on
which the action arose, the terms of any settlement, and any disposition of the
action by a court. Such notice, a copy thereof, and a certified copy of the
resolution containing the required determination by the Board of the Bank or
Company, and shall be sent to the regional director of the OTS, who shall
promptly acknowledge receipt thereof. The notice period shall run from the date
of such receipt. No such indemnification shall be made if the OTS advises the
Bank or Company in writing within such notice period, of its objection thereto.
23. SUCCESSOR TO THE BANK.
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank, expressly and
unconditionally to assume and agree to perform the Bank's obligations under this
Agreement, in the same manner and to the same extent that the Bank would be
required to perform if no such succession or assignment had taken place.
24. NON WAIVER.
The failure of one party to insist upon or enforce strict performance by
the others of any provision of this Agreement or to exercise any right, remedy
or provision of this Agreement will not be interpreted or construed as a waiver
or relinquishment to any extent of such party's right to enforce or rely upon
same in that or any other instance.
IN WITNESS WHEREOF the Bank and Executive have signed (or caused to be
signed) this Agreement on the Effective Date.
Northfield Bank
Attest:
/s/ Xxxxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
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Secretary Title: Chairman, Compensation Committee
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Attest: Executive
/s/ Xxxxxxxx Xxxxx /s/ Xxxx X. Xxxxxxxxx
------------------------------------ -----------------------------------------
Secretary Xxxx X. Xxxxxxxxx, Chairman of the Board,
President and Chief Executive Officer
Northfield Bancorp, Inc..
(The Company is executing this Agreement
only for purposes of acknowledging the
obligations of the Company hereunder.)
Attest:
/s/ Xxxxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------------ -------------------------------------
Secretary Title: Chairman, Compensation Committee
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